Archive for December, 2009

Divorced parenting presents the former spouses with all manner of challenges that intact couples do not have to face. One of the most significant is that after a divorce, both former spouses must remember that in their dealings with each other, both of them are still equally the parents of their children.

Today, courts are very open to custody arrangements that cooperative parents negotiate, but if custody is disputed, very often the mother ends up as the custodial parent receiving child support and the father becomes the noncustodial parent paying it, and he visits his children under the terms and conditions of a schedule. This routine, though admittedly not perfect, permits both parents to be actively involved in the lives of their children.

However, what frequently happens is that the noncustodial father, even one who demonstrates good faith with prompt payment of child support, slowly drifts out the lives of his children. Moreover, the divorced father who remarries and has a second family with a new wife may move toward the vanishing point in the lives of his children from earlier marriage. When Dad drifts from the picture — for example, missing promised outings with his children or not showing up for school events — children frequently blame themselves.

Judges, social workers, family counselors, custody evaluators — all stress the need for both mother and father to be active parents of their children, who suffer terribly in the divorce of their parents and who frequently fantasize about their reunification.

Among the many reason to make a heroic effort to avoid a divorce war is that when the marriage is over, divorce parents must still work together to be good parents. By the same token, former spouses who continue the war after the peace treaty has been signed — that is, those who continue to fight with their former spouses about, for example, returning the children a few minutes late — make effective parenting very difficult.

Admittedly, divorce parenting is difficult. The noncustodial father is not physically present much of the time and thus he misses many of his children’s best moments because they happen spontaneously. And the custodial mother may become overburdened because she and she alone is with them all the time. However, this actually underscores the truth of divorced parenting: both parents are still equally the parents of their children.

That people love their dogs and cats more than they do their estranged spouses comes as no surprise to family law judges who have been asked to mediate in custody decisions about a family pet.

Despite the fact that the owners love their dog or cat more than they love their partners, courts, overwhelmed with the Solomonic task of making custody decisions for children, have backed off. Judges have said that dogs and cats are personal property, and that the applicable principles about dividing personal property should apply to the family dog or cat. However, if a judge decides that Rex the dog or Susie the cat is marital property — and this has happened — he or she may consider which spouse would care better for the pet and which one has a greater attachment to the animal.

This, however, is not a ‘best interest of the animal’ standard, and courts have shied away from awarding visitation rights, the way they do in child custody cases. As one appellate court observed, “Our courts are overwhelmed with the supervision of custody, visitation and support matters related to the protection of our children. We cannot undertake the same responsibility as to animals.”

However, when both spouses love the dog or cat, they have been known to work out shared custody arrangements that involve moving the animal back and forth between them.

A Texas appeal court hit on the truth of the love of animals. It said that a contested puppy “is indeed a fortunate little dog with two humans to shower upon her attention and genuine love frequently not received by human children from their divorced parents.”

Common law marriages sometimes present problems when the couple wishes to divorce. A common law marriage is a legal marriage in which no formal ceremony took place and for which no license exists. The spouses create the marriage by making a present-tense declaration to marry, living together and presenting themselves to the world like any other married couple.

The problem with common law marriages is not making them but unmaking them, particular when one spouse denies that a marriage happened.

During the happier times of the common law marriage, recognition of the couple is not a problem, any more than recognition is a problem for a couple who were formally married. Recognition only becomes a question in the event of divorce or sometimes when the survivor of a common law marriage that ended in death seeks survivor’s benefits.

Only 10 of the 50 states still permit new common law marriages within their borders, and five other have grandfathered the practice. Couples who reside in these states must divorce to end a marriage. Most states recognize common law marriages contracted in an alien jurisdiction that was the parties’ residence at the time of the marriage. In other words, even states that no longer recognize new common law marriages will divorce couples who created them earlier in other jurisdictions. At least three states — Illinois, Minnesota and Arkansas — do not recognize the claims of common law marriages of their own residents in foreign jurisdictions.

Common law couples cannot simply walk away when they wish to divorce, but ending a common law marriage requires legal advice. There are technicalities that may create problems. For example, some states demand that their residents live in the common law state before the court considers whether a common law marriage actually arose. Moreover, recognition can create difficulties when residents of a non-common law state live in a common law marriage state without becoming residents because these people may assume, incorrectly, that they have a valid marriage when in fact they do not. They discover this only if they attempt to divorce. This problem can be very difficult, for example, for a woman who asserts a claim to a husband’s pension.

The movie Kramer v. Kramer poignantly depicts the heartbreak of a father trying to retain custody of his young son. Despite his superior competence as a parent (even after she won the case, the mother suddenly decides she is not equal to parenting), young Kramer loses custody to his wife when the judge decides that it would be in “the best interest” of the boy to be with her.

This phrase, the best interest of the child, sets the gold standard In marriage and family law and in divorce actions where judges sit like King Solomon and decide agonizing questions about the welfare of a child when one parent disputes the other.

Unlike the Biblical King Solomon, family court judges cannot suggest cutting a child in two as a means of finding the best parent.

This means a judge must assume the role of all-knowing parent in deciding the welfare of children, and as a practical matter, the judge has a great deal of discretion in deciding what is or is not in the best interest of a contested child. Statutes, case law and past practice may guide him or her, but in the end the judge decides.

In many jurisdictions, the best interest of the child means that in a custody dispute the child will end up with his or her mother. Unless a woman has demonstrated gross incompetence as a mother and parent, in most cases in most jurisdictions minor children in contested custody end up with their mother.

When you and your spouse part ways, you divide what you own and what you owe, and great care is required because a misstep can ruin a credit rating as well as make for post-divorce court appearances.

If you live in a community property state, you are responsible for debts incurred during the marriage and it does not matter whose name is on them. If you live in an equitable distribution state, debts in your name are yours alone, but you are responsible for debts taken in your name, even those without your consent. In all jurisdictions, joint credit card debt is jointly owned.

Debt division has some fine points when a court becomes involved. For example, debts found to dissipation — for example, extravagant high living with a paramour — may be non-marital even though they are incurred during a marriage.

The most common and best way to deal with joint debt is the pay it off as part of the marital settlement — often using the proceeds of the marital house or other assets. By doing so, you and your spouse make a clean break from each other, and the two of your eliminate one friction point that can and does ignite when couples decide to share the debt and continue to service it together. Joint debt carries with it joint and several liability. This means that XYZ Credit Card Co. can go after each spouse individually for debt that is in both their names. The credit card company is not concerned with the terms and conditions of the separation agreement.

Dividing the joint debt and sharing it sounds reasonable because you have some control of the debt and don’t have to come up the all the money, but it carries the risk of damage to a credit rating if your spouse defaults on his or her share of the debt reduction. Once again, the creditor can come after you despite what a court says about debt division.

In many, if not most divorces, the family dwelling is the couple’s largest asset. Its disposition can be very problematic.

Couples facing a divorce generally have three options in regard to the marital home, but each spouse needs to look at the prospects with a cold eye. The house is a building on a piece of land; a home is a state of mind and a habit of the heart. In the emotional turmoil that accompanies most divorces, many people think home when they should think house. Home — and all the hopes and dreams it symbolizes — may have been an accurate way to describe the building in which a family lived during the happier times of a marriage, but house is a more accurate way to see it when the frigid winds of divorce blow in the door. In short, hanging on to a house will not make it a home.

The disposition of real estate has become even more problematic since the collapse of the housing market. In some metropolitan areas in some jurisdictions, unsold housing greatly depresses the housing market. Divorcing couples face the prospect of selling a house in a depressed market. Anecdotal reportage suggests that some couples have postponed divorces in the face of these sour conditions.

That said, a divorcing couple in general has three options:

1) Sell the house on the market. In this routine, the couple sells the house and makes a clean break and divide the proceeds after paying off the outstanding mortgage. This course is no different than if the couple remained married and sold the house as an intact couple moving elsewhere.

2) Sell the house to one spouse who buys the other out. This regime often appeals when the custodial parent wants to stay in the house so that the lives of the dependent children are disrupted as little as possible. It may require that the purchaser obtain a new mortgage, or take over the existing one. Sometimes one spouse uses promissory note to pay the other his or her share over time.

3) Agree to own the house together. This regime is often used when the couple wishes to minimize the disruption in the lives of school age children. Very often it is accompanied with a deferred sale agreement by which the former spouses agree that the home will be sold when the children reach a certain age. Until then, one former spouse (often the custodial parent) lives in the house. This routine may require the couple to work out the terms and conditions of maintenance agrees and payment of the mortgage. The couple, who owned the house as tenants by the entirety when married, now own it as tenants in common when divorced.

Options 2 and 3 require careful consideration, particularly for a custodial mother, who should do sharp pencil work in calculating the costs of taking over the property.

Equitable property division sometimes makes for differences of opinion by judges about what is fair, but in one area, courts are almost entirely of one mind: the division of lotteries. Lottery winnings, whether from tickets purchased during a marriage or during a separation preliminary to a divorce, are marital property and subject to equitable distribution between the spouses.

In the case of winnings from a ticket purchased during a marriage, the courts find little trouble dividing winnings in half. In one 1990 Illinois case, In Re Mahaffrey, the husband argued that the lottery proceeds were income, paid in his name, and that they were his sole and separate property. The court brushed aside this argument, stating that the title theory of ownership was no longer recognized in equitable distribution, and likening lottery installment payments to pension rights subject to distribution.

Even when the ticket is purchased during a period of separation but before the divorce, courts have said that the winning proceeds are marital, not separate property, particularly in jurisdictions where the date of classification of assets is the date of dissolution of the marriage.

Even in cases where the an interlocutory decree has been handed down, courts have held that in so far as lottery winnings go, “the parties to a divorce remain husband and wife until the final decree of divorce.”

Winning tickets purchased during a separation may seem to support the argument that the proceeds are separate, but the key seems to be that when a jurisdiction uses the date of filing as the date of classification, lottery winnings are marital property.

In general, as far as lotteries and proceeds go, it is not over until the fat lady sings and she does not sing until the divorce is final.